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Court of Criminal Appeal 29 September 2014

CL v R

[2014] NSWCCA 196

Fraud & dishonestyTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST AGGREGATE SENTENCE DETECTIVE SERGEANT NO DISPARITY BETWEEN CO SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: CL v R [2014] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 29 September 2014
Judges: Hoeben CJ at CL, Fullerton J, Adamson J (with whom the other judges agreed)

Background

The applicant was a Detective Sergeant at Burwood Local Area Command who pleaded guilty to a series of serious offences committed between December 2003 and October 2004. The offences included two counts of aggravated entry of a dwelling with intent to steal (in company), unauthorised access of the police COPS computer system with intent to steal, corruptly receiving a benefit as an agent of the Crown, and giving false evidence to the Police Integrity Commission.

The offending involved the applicant using his position as a serving police officer to identify and extort victims, including by impersonating legitimate police activity, sharing confidential police intelligence with associates, and soliciting bribes from a person suspected of possessing child pornography. The applicant waited nearby during two separate home invasions and shared in the proceeds. He also gave false evidence to the Police Integrity Commission before recanting later the same day after consulting his legal advisers.

Williams DCJ sentenced the applicant in the District Court on 5 April 2012 to an aggregate sentence of 7 years and 6 months, with a non-parole period of 4 years and 6 months, after applying a 15 per cent discount for the utilitarian value of his guilty pleas. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by giving insufficient weight to the applicant's utilitarian plea of guilty and other mitigating factors
  • Whether the applicant was bound by his counsel's consent at the sentence hearing to the tender of agreed facts
  • Whether there was unjustifiable disparity between the applicant's sentence and those received by co-offenders
  • Whether the fact that the applicant's offending was intercepted by police before it could be fully carried out reduced the overall criminality of his conduct
  • Whether the aggregate sentence was manifestly excessive

Decision

Agreed facts and the plea of guilty: The Court found the applicant was bound by his senior counsel's consent, at the sentence hearing, to the agreed facts being tendered to the court. No error could be established in how the sentencing judge treated those facts. The Court also found the 15 per cent discount for the utilitarian value of the guilty plea was a matter within the sentencing judge's discretion, and the weight accorded to any particular mitigating factor was for the sentencing judge to determine.

Alleged disparity with co-offenders: The applicant argued his sentence was disproportionately higher than those received by co-offenders. The Court rejected this ground on the basis that different charges had been laid against the applicant and his co-offenders, reflecting their different roles and levels of culpability. No unjustifiable disparity arose from those different outcomes.

Interception before full offending could occur: The applicant argued that, because police had intercepted his planned offending before it ran its full course, his criminality was reduced. The Court rejected this argument, finding that the interception of offending conduct through diligent policing does not diminish an offender's culpability for what was actually done. The applicant's intentions and conduct remained the basis for assessing his criminality.

Manifest excess: The Court found the aggregate sentence appropriately reflected the seriousness of the offending. It noted the high objective seriousness of corruption by a serving detective sergeant, the significant breach of public trust involved, and the need for effective deterrence, particularly for offences that strike at the integrity of the justice system, including giving false evidence to the Police Integrity Commission. No error warranting intervention was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the weight given to mitigating factors, including the utilitarian value of a guilty plea, is a matter within the sentencing judge's discretion and will not ordinarily be disturbed on appeal.
  • A party is bound by concessions and consents made by their legal representatives during a sentencing hearing, including consent to the tender of agreed facts.
  • Disparity between sentences received by co-offenders does not establish appellable error where different charges were laid against different offenders, reflecting genuine differences in their roles and conduct.
  • The interception of planned offending by diligent police work does not, of itself, reduce an offender's criminality or warrant a lesser sentence for the conduct that was in fact carried out.
  • Corruption by a serving police officer of senior rank, particularly where it involves exploiting police intelligence, impersonating lawful authority, and giving false evidence to an integrity commission, places offending at the higher end of the scale of seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99, 111, 117, 178BA, 188, 249B, 249F, 308C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24B, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5
- Police Integrity Commission Act 1996 (NSW), s 107

Cases:
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Gas v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Hilder (NSW Court of Criminal Appeal, 13 May 1993, unrep)
- R v Irwin [1999] NSWCCA 361
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Perez-Vargas (1987) 8 NSWLR 559
- R v Todd [1982] 2 NSWLR 517
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- Weininger v The Queen [2003] HCA 14; 212 CLR 629
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Yousif v R [2014] NSWCCA 180
- Zreika v R [2012] NSWCCA 44